IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.966 of 2011
In
Civil Writ Jurisdiction Case No. 12785 of 2004
With
Interlocutory Application No. 4401 of 2011
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Baikuntha Bihari Mishra, son of late Badri Narayan Mishra, Resident of
Village - Sonar, P.S. - Riga, District - Sitamarhi
.... .... Petitioner - Appellant
Versus
1. The Champaran Kshetriya Gramin Bank through its Chairman, Head
Office - Motihari, Red Cross Building, Hospital Road, Motihari, District
East Champaran,
2. The Board of Directors, Champaran Kshetriya Gramin Bank, Head
Office Motihari, Red Cross Building, Hospital Road, Motihari, District
Champaran,
3. Shri Prakash Narain Awasthi, Chairman - cum - Disciplinary
Authority, Champaran Kshetriya Gramin Bank, Head Office - Motihari,
Red Cross Building, Hospital Road, Motihari, District East Champaran,
4. Shri Prabhunath Singh, Area Manager - cum - Inquiry Officer,
Champaran Kshetriya Gramin Bank, Bettiah Branch, Bettiah, District
West Champaran
.... ....Opposite Parties - Respondent/s
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Appearance :
For the Appellant/s : Mr. Shashi Bhushan Singh, Advocate.
For the Respondent Bank:
Mr. Prabhakar Jha &
Mr. Prabhat Kr. Sinha, Advocates.
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
2 06-07-2011 This appeal under Clause 10 of the Letters Patent is
filed 521 days beyond the period of limitation.
The appellant, a retired employee of the Kshetriya
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Gramin Bank – the respondent no. 1, (hereinafter referred to as
`the Bank’), has preferred this appeal under Clause 10 of the
Letters Patent against the judgment and order dated 6th August
2009 passed by the learned single Judge in above CWJC No.
12785 of 2004. Pending the petition, the appellant, on reaching
the age of superannuation, retired from service.
It appears that the appellant joined the Bank as
officer. He was posted as Branch Manager on 3rd October 1980.
In course of time he came to be transferred from one branch to
another. In or around the year 2001 the appellant appears to
have some dispute with the then Chairman of the Bank. On 4 th
July 2002, a disciplinary proceeding was initiated against the
appellant. One more disciplinary proceeding was initiated
against him on 20th July 2002. After holding due enquiry, the
appellant was found guilty of several charges leveled against
him. In view of the said finding of guilt, by order dated 17th
December 2003 made by the disciplinary authority – cum –
Chairman of the Bank, the appellant was dismissed from
service.
The said order was carried in appeal before the
Board of Directors by the appellant. The Board of Directors,
under order dated 25th September 2004, allowed the appeal
partially; set aside the order of dismissal from service, instead
imposed punishment of reduction in pay upon the appellant; the
period of suspension was ordered to be treated as such and the
salary till the date of reinstatement in service was not allowed.
The said order, in so far as it imposed punishment
of reduction in pay and did not allow the past wages, was
challenged by the appellant in above CWJC No. 12785 of 2004.
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The appellant also made grievance that the order of the Board of
Directors was not implemented. The appellant was not allowed
to resume duty in spite of the order of the Board of Directors.
The learned single Judge, by the impugned judgment and order
dated 6th August 2009, allowed the writ petition to the extent
that the Bank was directed to allow the appellant to join the
service and to pay the salaries from the date of joining report till
he reached the age of superannuation. Challenge to the said
judgment by the Bank in LPA No. 1604 of 2009 failed.
We are informed at the Bar that the aforesaid
directions have been complied with.
Feeling aggrieved by the said order the appellant
filed MJC No. 3997 of 2010 for modification of the order. Same
came to be dismissed on 6th April 2011. The learned single
Judge held that in the guise of seeking modification of the order,
the appellant demanded re-hearing of the writ petition. In view
of the said observation, the appellant – petitioner has filed the
present appeal against the above referred order dated 6 th April
2011 after a considerable delay.
Learned Advocate Mr. Shashi Bhushan Singh has
appeared for the appellant. He has submitted that CWJC No.
12785 of 2004 was not heard by the learned single Judge on
merits. The appellant challenged the order of the Board of
Directors imposing punishment of reduction in pay and not
allowing the wages for the interregnum period. The said
challenge was not considered by the learned single Judge; nor
the learned single Judge rendered his decision on the said issue.
He has submitted that the delay in question occurred on account
of the appellant’s pursuing the remedy before the learned single
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Judge in above referred MJC No. 3977 of 2010. The appeal
could be preferred only after the said application was rejected.
Learned Advocate Mr. Prabhakar Jha has appeared
for the Bank. He has submitted that since the impugned
judgment and order dated 6th August 2009 the appellant
preferred CWJC No. 13478 of 2010 in the same subject matter.
It came to be dismissed on 25th August 2010. The factum of the
said writ petition and the decision on it has not been disclosed in
the present appeal. He has produced the memo of the said
CWJC No. 13478 of 2010.
In CWJC No. 13478 of 2010 the appellant sought
directions to allow the revised time scale from 29th October
2002 and claimed recovery of the amount of difference in salary.
According to the appellant, the learned single Judge, while
deciding CWJC No. 12785 of 2004, had not confirmed the guilt
of the appellant and the punishment imposed upon the appellant.
The appellant was, therefore, entitled to the benefit of revised
time scale.
It is apparent that the above referred CWJC No.
13478 of 2010 also arose from the same cause of action, i.e. the
disciplinary proceeding held against the appellant and the order
of punishment.
To us, it appears that the challenge to the impugned
judgment dated 6th August 2009 in the present appeal is an
afterthought. The appellant first tried to avail the benefit of want
of specific finding in respect of the guilt proved against him in
the impugned judgment dated 6th August 2009, in CWJC No.
13478 of 2010. Long thereafter, he filed application for
modification. It may be noted that the application for
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modification was also not filed within the period of limitation
for filing appeal. It, therefore, cannot be said that the appellant
could not file the present appeal within the period of limitation
because of pendency of MJC No. 3977 of 2010 or because he
was pursing an alternative remedy.
We are not satisfied about the cause of inordinate
delay of 521 days occurred in filing the present appeal.
Moreover, the suppression of fact regarding filing of CWJC No.
13478 of 2010 (rejected on 25th August 2010) by the appellant
amounts to abuse of process of law. The appeal deserves to be
dismissed on the ground of suppression of material facts also.
For the aforesaid reasons, the appeal and the
interlocutory application are dismissed.
(R.M. Doshit, CJ)
(Birendra Prasad Verma, J)
Dilip.